Northern Ireland - Social Security and Child Support Commissioners' Decisions

[1998] NISSCSC CSC3/98 (22 June 1999)

 


Decision CSC3/98

APPELLANT: CHILD SUPPORT OFFICER

1ST RESPONDENT: MR J.. M...

2ND RESPONDENT: MRS R... M...

THE CHILD SUPPORT (NORTHERN IRELAND) ORDERS 1991 AND 1995

Appeal to the Child Support Commissioner

on a question of law from the decision of the

Craigavon Child Support Appeal Tribunal

dated 17 December 1997

DECISION OF THE CHILD SUPPORT COMMISSIONER

1. This is an appeal by the Adjudication Officer, leave having been granted by the Tribunal Chairman, against a decision dated 17 December 1997 of a Child Support Appeal Tribunal (hereinafter called "the Tribunal") sitting at Craigavon. The decision under appeal to the Tribunal was dated 9 September 1997 and was a refusal to review a decision dated 6 August 1997 (described as "an instigated review" decision) that Mr M... was to pay the sum of £57.40 per week Child Support Maintenance for the child from 11 March 1997. The Tribunal's decision was "That the decision of the Child Support Officer be overturned and the date of the maintenance assessment is the 6 August 1996 and not the 11 March 1997."
2. Mrs McCann of Central Adjudication Services set out her grounds for appeal in a letter dated 31 July 1998. The first named respondent, Mr M... was given an opportunity to comment on the observations but did not reply. The second named respondent, Mrs M... was also given an opportunity to comment and by letter of 21 October 1998 replied saying she had no observations to make about the appeal.
3. My decision is that the Tribunal's decision was in error of law and is therefore set aside. I hereby give the decision which the Tribunal should have given, ie that Mr M... is liable to pay the sum of £57.40 per week for Child Support Maintenance for the child from the first day of the maintenance period containing 16 August 1996.
4. The Tribunal's decision was to the effect that Mr J... M... was liable to pay Child Support Maintenance of £57.40 per week from the effective date of 6 August 1996. The Adjudication Officer's decision which had been under appeal was, as mentioned above, refusing to review a maintenance assessment that Mr M... was liable to pay the sum of £57.40 per week from the effective date of 11 March 1997.
5. The grounds of appeal set out in Mrs McCann's letter of 31 July 1998 were as follows:-

1. The Tribunal erred in law in concluding that the review conducted in this case was a review under Article 19 of the Child Support (Northern Ireland) Order 1991 ("the 1991 Order").

2. The Tribunal erred in determining the effective date of the assessment by reference to the provisions in Regulation 30(2) of the Child Support (Maintenance Assessment Procedure) Regulations 1992 ("the MAP Regulations").

3. The Tribunal misdirected itself in concluding the review was appropriate under Article 19 of the 1991 Order and consequently failed to make findings of fact on the meaning of the terms of Regulation 30B(4) in relation to the phrase "suspected".

6. The factual history of the case appears to have been as follows:-

Mrs M..., the Parent With Care, applied for Child Support Maintenance and a maintenance assessment was put in place at the rate of nil as the Absent Parent, Mr J... M..., was receiving Income Support. On 6 August 1996 the Social Security Agency notified the Child Support Agency that Mr M... had started work. On 16 August 1996 a review form was issued to Mr M... to obtain details of his employment and income. A reminder to return the form was issued on 30 August 1996. In the event the review form was not received in the Child Support Agency until 13 March 1997.

7. A Child Support Officer carried out what was described as "an instigated review" of the maintenance assessment on 6 August 1997. An instigated review appears to mean a review which was not applied for by the Parent With Care or the Absent Parent. As a result of this review a fresh maintenance assessment was made. This was to the effect that Mr M... was liable to pay Child Support Maintenance at the rate of £57.40 from the effective date of 11 March 1997.
8. On 4 September 1997 the Absent Parent asked for a review of the assessment as he did not agree with the income being used. The Child Support Officer refused to carry out a review because in his view there were no grounds to do so. The Absent Parent appealed that decision.
9. The Tribunal decided "That the decision of the Child Support Officer be over-

turned and the date of the maintenance assessment is 6 August 1996 and not

11 March 1997."

10. In the reasons for the decision the Tribunal recorded:-

"Article 19 of the Child Support (Northern Ireland) Order 1991 is

the Article which covers change of circumstances, reviews by the

Absent Parent or the Parent With Care and it is just such a review

[sic] took place when Mr M... came off Income Support and

commenced employment."

The Tribunal further recorded:-

"Under Regulation 30(2) of the Child Support (Maintenance

Assessment Procedure) Regulations (Northern Ireland) 1992, it

states that "subject to paragraph 4" (dealing with the death of

a qualifying child) "where an application is made under article 19

of the Order for a review of a maintenance assessment in force and

a fresh maintenance assessment is made ..., the effective date of

that assessment shall be the first day of the maintenance period in

which the application is received."

In this case, the Child Support Officer decided that the effective

date of assessment was the date that Mr M... completed the form

and returned it to the Child Support Agency but the Tribunal have

been asked whether or not the correct date should have been the date

that Income Support [sic] that Mr M... had commenced employment

and was no longer receiving benefit namely 6 August 1996. This is

not the date that Mr M... stopped receiving benefit, but the date

that the Child Support Agency received information that he had

stopped receiving it.

Article 21(2) of the Child Support (Northern Ireland) Order 1991

allows Child Support Officers to conduct a review under Articles 19

or 20, stating "where a child support officer is not conducting such

a review" (set out in 21(1)) but is nevertheless satisfied that if an

application were to be made under Article 19 or 20, it would be

appropriate to make a fresh maintenance assessment, he may do so".

The Child Support Officer was therefore to carry out a change

of circumstances review under Article 19, as there had been previous

assessments in this case and this was not a "brand-new"

application. Accordingly the Tribunal disagree with the Child

Support Officer and feel that the earlier date of 6 August 1996,

being the date that the Child Support Agency were informed of the

change of circumstance, is the correct effective date of assessment".

11. I do not find any error in the Tribunal's decision in relation to the assessment of Mr M...'s income and can find no error of law in its apparent upholding of the Child Support Officer's decision on the weekly amount of the Child Support Maintenance Assessment.
12. I do, however, consider that Mrs McCann was correct in her most helpful and thorough letter of 31 July 1998, where she submits that the Tribunal erred in law in concluding that the decision of 6 August 1997 was a review decision under Article 19 of the said Order. It was not in fact a decision under that Article, not being made by means of an application to the Child Support Officer by either the Absent Parent or the Parent With Care. Rather it was a review under Article 21(6) of the said Order. That Article provides:-

"Where a child support officer suspects that if an application for a

review of a maintenance assessment were to be made under Article 19

it would be appropriate to make one or more fresh maintenance

assessments, he may review the maintenance assessment even though

no application for its review has been made under that Article".

13. In this case no application for review was made by either the Absent Parent or the Parent With Care. The review was carried out by the Child Support Officer, triggered it seems, by the information conveyed by Income Support. It was therefore a review under Article 21(6). That Article is a distinct authority giving Child Support Officers independent power to review from those contained in Articles 18, 19 or 20.
14. Mrs McCann is again correct in the second ground of her appeal, ie that as a result of concluding that the review was under Article 19 the Tribunal failed to make findings on the application of Regulation 30B(4) of the said Maintenance Assessment Procedure Regulations which fixes the effective date for any fresh maintenance assessment following Article 21(6) reviews.
15. Regulation 30B(4) provides:-

"Effective dates of maintenance assessments following a review under

Article 21 of the Order.

30B. ...

(4) Subject to paragraph (5) and regulation 30C, where a child support officer has carried out a review of a maintenance assessment on the grounds set out in Article 21(6) of the Order, the effective date of any fresh assessment made following such review shall be the first day of the maintenance period in which the child support officer suspected that he might be required to make one or more fresh maintenance assessments if an application under Article 19 of the Order were made".

16. It will be seen from Regulation 30B(4) that the relevant date is the date when the Child Support Officer and not the Agency suspects that he might be required to make one or more fresh maintenance assessments. This is to be the effective date of any fresh assessment made following an Article 21(6) review.
17. Mrs McCann asked me to give guidance in relation to the interpretation of Article 21(6) of the 1991 Order and Regulation 30B(4) of the Maintenance Assessment Procedure Regulations. I consider it appropriate to do so. The provisions have separate purposes. Article 21(6) gives a Child Support Officer the power to conduct a review if the Officer suspects that if an application for review of a maintenance assessment were to be made under Article 19 it would be appropriate to make one or more fresh maintenance assessments. Regulation 30B(4) does not come into play until such a fresh maintenance assessment is made. It then provides for the effective date of any such fresh maintenance assessment to be the first day of the maintenance period in which the Child Support Officer suspected that he might be required to make one or more fresh maintenance assessments if an application under Article 19 of the Order were made. Therefore, when a review is carried out under Article 21(6) and a fresh maintenance assessment made following such a review the effective date is to be the first day of the maintenance period in which the Child Support Officer suspected that had an application been made under Article 19 (ie by the Absent Parent or the Parent With Care) he might be required to make a fresh assessment. I have been referred by the Child Support Officer to two decisions in the area of Social Security law. The first is a Great Britain Commissioner decision CIS 14342/96 which is of strong persuasive authority only in this jurisdiction. The other is decision C13/96(IS). This is a decision of a Northern Ireland Commissioner which is under appeal to the Court of Appeal. I consider that these cases, which were both decided on the basis of interpretation of the Social Security (Adjudication) Regulations are not of assistance to me in interpreting regulation 30B(4) above which is quite differently worded.
18. As regards the meaning of "suspect", the Oxford Dictionary defines same as, "to imagine or fancy something to be possible or likely; to have a faint notion or inkling of; to surmise". It seems to me that in the context of the legislation the appropriate construction is the first date when the possibility of a fresh maintenance assessment being required raised itself in the Child Support Officer's mind.
19. In the absence of first hand evidence from the Child Support Officer this will have to be deduced from the papers. In this particular case information was given to the Agency on 6 August 1996 but there is no indication that this information was before the Child Support Officer at that date. It is quite clear that Regulation 30B(4) relates to the state of mind of the Child Support Officer not to receipt of information by the Agency. The first date when it appears that information was before the Child Support Officer was 16 August 1996, the date the Child Support Officer issued the review form. It seems to me that this is also the date when the Child Support Officer first suspected that he might be required to make one or more fresh maintenance assessments. If he did not so suspect I can see no point in the review enquiry form being issued. That it seems to me was when he started the review process.
20. Under Article 21(6) the Child Support Officer only has power to review where he suspects that if an application for review were made under Article 19 it would be appropriate to make one or more fresh maintenance assessments.
21. Under Article 19(3) a Child Support Officer to whom has been referred an application for review under that Article is not to proceed unless, on the information before him he considers it likely that he will be required under subsection (6) or (7) to make a fresh maintenance assessment if he conducts a review. In other words he is not to start the review process unless he considers it likely, considering the information before him when the application was referred to him that he would have to make a fresh maintenance assessment.
22. A fresh maintenance assessment must be made under Article 19 unless either of the two circumstances set out at Article 19(6)(b) apply. The circumstances are as follows:

"(a) that he [the Child Support Officer] is satisfied that the original assessment has ceased to have effect or should be brought to an end;

or

(b) the difference between the amount of child support maintenance fixed by the original assessment and the amount that would be fixed if a fresh assessment were to be made as a result of the review is less than such amount as may be prescribed."

It is noteworthy that the fresh maintenance assessment must be made unless one of the above applies. The review in this case was conducted under Article 21 but the Child Support Officer had to consider what would have been the likely outcome had the application been under Article 19. He was only able to review under Article 21 if he suspected that he would have had to make a fresh maintenance assessment had an application been under Article 19. The fact that he did start the review process by issue of the review enquiry form indicates that he must have considered this likely at that time i.e. on 16 August 1996.

23. The Child Support Officer acting under Article 21(6) was under no obligation to review; there would be no point in his even starting the process unless there had been in his mind at least the strong possibility of a fresh maintenance assessment being appropriate had the application been under Article 19 and there was no indication of either of the factors set out at Article 19(b) being present. It therefore appears to me that when the Officer issued the review form, CSA5 to the absent parent, ie on 16 August 1996, the possibility, indeed the probability, of a fresh maintenance assessment within the Article 21(6) parameters was present to his mind. This was the first date that he suspected such a fresh maintenance assessment might be required. Under Regulation 30B(4) it is with reference to that date that the effective date is to be fixed.

It is true that the Child Support Officer who made the decision of 6 August 1997, himself placed an effective date of 11 March 1997 on the assessment. There is no indication of why this start date was used. For the reasons indicated above it appears to me that the suspicion of a fresh assessment being required must have been present to the Child Support Officer's mind well before that date and I therefore conclude that the said Child Support Officer misinterpreted or failed to apply the said Regulation 30B(4) in fixing the effective date. The effective date is to be the first day of the maintenance period containing 16 August 1996.

(Signed): M F Brown

COMMISSIONER

22 June 1999